2013 (10) TMI 557 - AT - Income Tax

Tribunal allows Revenue's appeals, remands cases for fresh consideration

The Tribunal allowed both appeals of the Revenue, setting aside the CIT(A)'s orders for both assessment years and remanding the matters back to the CIT(A) ... Accomodation entries passed in the books – conversion of black money into white and bring the money in the books of accounts - Long term capital gains (LTCG) – Held that:- Outcome of investigations carried out by A.O., wherein it was found that M/s Gold Star Finvest Pvt. Ltd. is a registered sub-broker. However, the said broking company was not traceable/ available as the notice u/s 133(6) of the Act was returned unserved by the postal authority - The Assessing Officer further found that company's share of which have been claimed transacted by the assessee and who offered the dematerialization of its shares to the assessee did not respond the notice u/s 133(6) issued by him. Thus none of the evidence furnished by the assessee showing transactions of sale and purchase of shares deriving long term capital gain stands verified - During the course of search u/s 132(1) of the Income Tax Act, the statement of Shri Mukesh Choksi was recorded on oath wherein he said that he was engaged in the business of providing accommodation entries through various companies floated by him like Mahasagar Securities Pvt. Ltd., M/s Gold Star Finvest Pvt. Ltd. etc. , which all are run by him from the officer at 6 th Road Santacruz(E). It is pertinent to mention here that shares of M/s Buniyad Chemicals Ltd., Ahemdabad was also transacted through M/s Gold Star Finvest Pvt. Ltd. who was found to be engaged in providing accommodation entries. In earlier years 2005-06 and 2006-07, the issue before the Assessing Officer was with regard to genuineness of long term capital gain earned on shares of M/s Talent Infoways Ltd. whereas during the years 2003-04 and 2004-05, the issue is with regard to shares of M/s Buniyad Chemicals Ltd., Ahemdabad - The ld. CIT(A) was not justified by relying on the findings of his predecessor and Tribunal given in its order for the assessment year 2005-06 and 2006-07 with regard to genuineness of sale of shares of M/s Talent Infoways Ltd. During the years under consideration, the controvery is with regard to shares of M/s Buniyad Chemicals Ltd., Ahemdabad which was not found to be registered at Stock Exchange and the broker through which share transactions were 19 made has categorically given statement that he was engaged in providing accommodation entries – Decided in favor of Revenue. Issues Involved:1. Deletion of addition made under Section 68 of the Income Tax Act.2. Deletion of addition made on account of undisclosed expenditure under Section 69C of the Income Tax Act.Detailed Analysis:Issue 1: Deletion of Addition under Section 68 of the Income Tax ActAssessment Year 2003-04:The Revenue challenged the deletion of an addition of Rs. 15,61,884/- made under Section 68 of the Income Tax Act. The Assessing Officer (AO) had found that the assessee credited amounts received from the sale of shares of M/s Buniyad Chemicals, Ahmedabad, and concluded that these transactions were not genuine. Notices issued to the broker M/s Goldstar Finvest Pvt. Ltd. and the Principal Officer of Buniyad Chemicals went unserved or uncomplied. The AO also recorded the statement of Shri Mukesh Manak Lal Choksi, who admitted to providing accommodation entries. The CIT(A) deleted the addition, stating that the sale proceeds were received through the bank and could not be treated as cash credit under Section 68. The CIT(A) relied on prior decisions in similar cases and the jurisdictional ITAT's dismissal of Revenue's appeals on the same issue.Assessment Year 2004-05:The Revenue contested the deletion of an addition of Rs. 20,07,929/- under Section 68, under similar circumstances as the previous year. The AO's detailed inquiry revealed that the shares were not listed on recognized stock exchanges, and the broker was untraceable. The CIT(A) deleted the addition, following the same reasoning as for the previous year.Tribunal's Findings:The Tribunal noted that the AO made a detailed inquiry and found the transactions to be sham, supported by the statement of Shri Mukesh Choksi and non-compliance from relevant parties. The CIT(A) deleted the additions without addressing the AO's findings, relying on previous decisions involving different shares. The Tribunal set aside the CIT(A)'s order and remanded the matter back to the CIT(A) for fresh consideration, directing the CIT(A) to address the AO's findings and allow the assessee to present further evidence.Issue 2: Deletion of Addition on Account of Undisclosed Expenditure under Section 69C of the Income Tax ActAssessment Year 2003-04:The AO added Rs. 78,100/- as undisclosed commission paid in cash, estimating a 5% commission on the share transactions, which he treated as accommodation entries. The CIT(A) deleted this addition, stating that the broker's commission was already accounted for in the contract notes and bills, and no additional charges were paid by the assessee. The CIT(A) relied on prior decisions in similar cases.Assessment Year 2004-05:Similarly, the AO added Rs. 1,00,000/- as undisclosed commission for the same reasons. The CIT(A) deleted this addition, following the same reasoning as for the previous year.Tribunal's Findings:The Tribunal found that the AO had made a detailed inquiry and concluded that the transactions were sham. The CIT(A) deleted the additions without addressing the AO's findings. The Tribunal set aside the CIT(A)'s order and remanded the matter back for fresh consideration, directing the CIT(A) to address the AO's findings and allow the assessee to present further evidence.Conclusion:The Tribunal allowed both appeals of the Revenue, setting aside the CIT(A)'s orders for both assessment years and remanding the matters back to the CIT(A) for fresh consideration, with specific directions to address the AO's detailed findings and allow the assessee to present further evidence.